Copyright and the GPL: Friends or Foes?

If recent events are any indication, open source advocates may be the best informed people in the country about software copyright law (outside of the legal profession). But as a foundation for future discussions, let's take some time this month to review the basics of United States copyright law, discuss the GNU General Public License (GPL), explore how various legal attacks on the GPL might play out, and see how those attacks might be thwarted.

If recent events are any indication, open source advocates may be the best informed people in the country about software copyright law (outside of the legal profession). But as a foundation for future discussions, let’s take some time this month to review the basics of United States copyright law, discuss the GNU General Public License (GPL), explore how various legal attacks on the GPL might play out, and see how those attacks might be thwarted.

Learn Copyright Law in 120 Seconds

Copyright protects a work, or the expression of an idea in a fixed medium, where “medium” might be canvas, paper, film, or code.

When you create a work, it is automatically and immediately copyrighted, and Federal law — as memorialized in Article II, Section 8 of the U.S. Constitution — entitles you, as the work’s creator, to a set of exclusive rights, including the right to display, sell, copy, make derivative works of, destroy, and license your work as you see fit.

Prior to 1988, your rights under copyright lasted seventy years after the time of your death. However, in 1988, the Sonny Bono Copyright Extension Act extended the previous term for copyright by twenty years to roughly ninety years. (“Roughly” is appropriate, because the complexity of the rules in certain circumstances require a scientific calculator to calculate a specific term.)

Copyright law is strong. Provided for by the Constitution, it’s been extended and refined by Congress and the U.S. Supreme Court to give a lot of weight to the rights granted an author. For example:

* Copyright law preempts any other similar right granted by the states. There used to be a common law copyright, but now only the Federal system is recognized.

* The rights granted by the Copyright Act of 1976 and subsequent amendments can override contracts, wills, and trusts. The Copyright Act says at several points “notwithstanding anything to the contrary,” and the Supreme Court has upheld that language on several occasions.

* In Eldred v. Ashcroft, the Supreme Court further strengthened copyright by letting Congress (essentially) grant additional rights — in the Eldred v. Ashcroft case, it was additional time — to every copyright owner.

One of the rights granted to a copyright holder is the right to license the work so that others can use it. A license is a contract that states, “I grant you this part of my copyright, on an exclusive/non-exclusive basis.” Furthermore, a core tenet of copyright law is that rights are divisible. So, you can effectively license your rights piecemeal, and even stipulate other conditions, such as the duration of the license.

For example, if you wrote a book, you could grant an exclusive license to someone to produce paperback copies in French for a period of two years, say, for either a flat fee or a set royalty. You’d keep every other right, including, in this example, the right to produce hardcover French copies of your book and the right to produce paperback copies in Spanish.

Like a book, your software code is also copyrighted and you can exploit your rights in it just the same.

It may surprise you to learn that when you grant rights to someone, you always have the right to take back those rights after (roughly) 35 years. (Yes, the time frames were designed for books and music, not software.) You can do this no matter what your contract says, even if it says you explicitly waive the ability to exercise this right under the law.

When the copyright on a work ends — either because its term has expired or because the author’s given up all rights in a written declaration — then the work enters the public domain. A work in the public domain is free for anyone to use in any way they see fit, including making derivative works and copyrighting those derived works as new works.

Attacking the GPL

The GNU General Public License is a contract that software authors can adopt as a method to grant a specific portion of their copyright to a large group of users. The terms of the GPL grant rights to copy and distribute verbatim copies of a program, and to make modifications (derivative works) and distribute those. Moreover, the terms of the GPL are very explicit about what you must do to adhere to the contract: you must distribute everything under the same (GPL) license and you must provide your source code, among other stipulations.

So what might someone hope to achieve by attacking the GPL or seeking to have it invalidated? The two most obvious goals are either that the attacker wants to prevent some software from being distributed, or wants to be able to use the software under a different license (co-opt the technology).

In the former case, if a work is original, a GPL attacker can’t really prevent the software from being distributed. In fact, even if the GPL were invalidated as a license, software developers could still place their work in the public domain, though that doesn’t have the same organic growth effect on technical knowledge.

In the latter case, it seems unreasonable for a court to say, “The license you distributed your work under, in reliance on federal law, is not permitted — it’s just too radical — so we’re going to grant rights to everyone who is using your software under the terms recommended by the person suing you.”

But if invalidating the GPL doesn’t make much sense, there are other ways to cause trouble in the courts. Here are some possible claims (and remember, a claim doesn’t have to be reasonable to cause a lot of trouble):

1. There is no formal contract because the GPL is not a valid way to license software. It restricts the behavior of users or third parties too much. It’s unconstitutional.

This argument flies in the face of the divisibility of copyright — that you can grant exactly as much or as little as you choose.

2. The law of the State of Wherever (which controls contracts) doesn’t allow the GPL to limit warranties.

When you buy a new lawnmower, for example, some states say that even if the lawnmower isn’t warranted to be free from defects or to be good for mowing, it still has to be. However, the GPL isn’t a sales contract, it’s a license.

In theory, an end-user could demand monetary damages for “defective” GPL’ed code, but none of the potential defendants — the Free Software Foundation (FSF), the Apache Foundation and similar foundations, and individuals — are likely to have deep pockets. And plaintiffs want deep pockets.

By the way, SCO v. IBM is another matter entirely. SCO says it owns the copyright to non-open source software that was sold using a standard commercial license (for Unix), but that’s being used in a way the license does not permit (distribution of source code, etc.). That’s actually a fairly good lead-in to the next claim.

3. This software is so different from the free software that it’s based on, it can’t be considered a derivative work. Therefore, it’s a new work, and can be licensed without regard to the GPL’s so-called “virus” clause.

This claim does not attack the validity of the GPL, just its applicability. A claim that a piece of software isn’t a derivative work would be a fact-intensive inquiry for the courts, requiring experts to look at the two collections of source code and present their opinions.

However, the real danger in this situation, which is likely to occur in the next few years if it hasn’t already, is that the owner of the copyright (the open source software author) has neither the incentive — after all, the software was provided free-of-charge — nor means to contest such a claim. Here, the offending company may have leeway to disregard the GPL. Fortunately, many of the more prominent free software programs have a foundation or enough corporate sponsors to act as a check on such behavior.

4. The GPL permits the activity that I want to do, even though the text of the license doesn’t spell it out explicitly.

Courts don’t rewrite contracts. Instead, courts enforce a contract as written, or rule that it never really existed as a legal agreement, or (frequently) interpret the meaning of the terms of the contract to reach a fair result.

So, in a claim like this one, a court may be required to interpret the terms of the GPL to see exactly what’s permitted and denied. That’s a sticky wicket: courts are not technical experts (though they call them in as witnesses); laws related to software is unsettled (no one is sure how many of the cases should come out, much less how they will come out); and free software licensing is a new animal to virtually every judge.

And what if the GPL was rendered void? The simple answer is that the end-users’ rights to use your software end. Period. If there was no valid grant of copyright, then all rights springing from the Copyright Act revert immediately to the author.

5. The program you have released under the GPL violates a patent that I own.

So far, the GPL and copyright law seem provide a strong legal footing. But that footing is weakened by patent infringement claims. If you write software that violates a patent, you still own the copyright, but the Patent Act gives the patent holder a superior right to stop your users and you from using the software. While a copyright gives rights to a single expression of an idea, a patent protects the idea itself (that’s not precisely correct legally, but it conveys the concept).

Even if you rewrite the code, it might still violate the patent unless you can avoid the language of the patent’s claims.

Many people see software patents as a grave threat to open source software. But that’s a discussion for another day.

Copyright is Fundamental

The GPL is very much dependent on strong copyright law. Fortunately, copyright is stronger now than it ever has been. Understanding how the GPL operates as a legal document within the ambit of automatically-granted federal intellectual property rights should help you navigate the rhetoric that usually surrounds discussions about the legal ramifications of open source software.

Nicholas Wells has written numerous books on Linux, Apache, network security, and related topics. You can reach him at nwells@law.gwu.edu. This is a commentary on copyright law and is not legal advice.

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